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ELRCDismissedNot stated in judgment (Employment and Labour Relations Court cause)· [2022] KEELRC 1065 (KLR)

Elkana Magu Kirundi v National Industrial Training Authority [2022] KEELRC 1065 (KLR)

Employment and Labour Relations Court
19 January 2022
MOMaureen Onyango
2,722 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that the clock for suing an employer starts when they ignore a reinstatement order, not when you resigned.

What this practically means

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Executive summary

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The Respondent filed a preliminary objection dated 8th July 2021 seeking the dismissal or striking out of the Claimant's suit on the ground that it was statute barred under Section 90 of the Employment Act, which imposes a three-year limitation period in employment matters, and that the suit was therefore an abuse of process and incompetent. The Claimant, a former Centre Manager compelled to resign effective 5th April 2018, had successfully appealed to the Public Service Commission, which on 26th August 2020 set aside the resignation and ordered his reinstatement with full pay. The Respondent did not reinstate him, and the Claimant filed this claim on 18th May 2021 seeking a declaration that the failure to implement the PSC decision was unlawful and a mandatory injunction compelling reinstatement. The Respondent argued that the cause of action arose on the effective date of resignation in April 2018, relying on authorities including Rift Valley Railways v Musonye and Attorney General v Andrew Maina Githinji, and contended that the appeal to the PSC did not stop time from running. The Claimant countered that the objection required evidence and so was not a true preliminary objection per Mukisa Biscuits, and that his claim was for enforcement of the PSC decision, a cause of action arising when the Respondent refused to reinstate him after 26th August 2020. The court agreed, holding that the cause of action was the Respondent's refusal to reinstate following the PSC decision, not the resignation itself, and that the claim was therefore not statute barred. The preliminary objection was dismissed with costs to the Claimant.

Key legal issues

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Whether the claim is time barred under Section 90 of the Employment Act

Holding

The preliminary objection fails because the cause of action pleaded is enforcement of the PSC decision of 26th August 2020, which arose after that date and within three years of filing the claim on 18th May 2021.

Reasoning

The court examined the prayers in the memorandum of claim and found they seek a declaration and mandatory injunction to compel implementation of the Public Service Commission's reinstatement decision dated 26th August 2020. The cause of action was therefore not the 2018 forced resignation relied on by the Respondent, but the Respondent's refusal to reinstate the Claimant following the PSC decision. That refusal occurred after 26th August 2020, so the claim filed on 18th May 2021 fell within the three-year limitation period under Section 90 of the Employment Act.

p. 4

Legal principles established

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  • Where the cause of action in an employment claim is the refusal to implement a Public Service Commission reinstatement decision, limitation under Section 90 of the Employment Act runs from the date the employer refused to reinstate, not from the date of the original forced resignation.

Court orders

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  1. 1.The Respondent's preliminary objection dated 8th July 2021 is dismissed with costs to the Claimant

Authorities

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Legislation

  • Employment ActSection 90
  • Limitation of Actions ActCap 22; Section 4(1)
  • Public Service Commission ActSections 74 and 89
  • Constitution of KenyaArticles 48, 159(2)(d) and 162(1)(a)
  • Civil Procedure ActSection 1B
  • Civil Procedure RulesOrder 21 Rule 1
  • Employment and Industrial Relations ActSection 15

Cases cited (8)

  • Mukisa Biscuits Manufacturing Ltd
    (1969) EA 696
  • Banking Insurance and Finance Union (K) v Bank of India
    Industrial Court Cause No. 1201 of 2012
  • Attorney General & Another v Andrew Maina Githinji & Another
    [2016] eKLR
  • Ndirangu v Henkel Chemicals (EA) Ltd
    [2013] eKLR
  • Rift Valley Railways (Kenya) Ltd v Hawkins Wagunza Musonye & another
    [2016] eKLR
  • Divecon v Samani
    (1995 - 1998) I EA 48
  • Samuel Waweru v Geoffrey Muhoro Wangi
    Nakuru Civil Case No. 489 of 2013
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others
    [2015] eKLR
Jurisdiction invoked
Article 162(1)(a) of the Constitution; Section 89 of the Public Service Commission Act (enforcement of PSC decisions in the Employment and Labour Relations Court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Elkana Magu Kirundi v National Industrial Training Authority [2022] KEELRC 1065 (KLR)", Case Analysis (2022). Not stated in judgment (Employment and Labour Relations Court cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1065/eng@2022-01-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.